Former governors launch campaign to retain justices

Former Gov. Graves on why he thinks justices should be retained

Former Gov. Bill Graves, a Republican, comments on why he thinks the five Supreme Court justices up for retention this fall should be retained.
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Former Gov. Bill Graves, a Republican, comments on why he thinks the five Supreme Court justices up for retention this fall should be retained.
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TOPEKA

Four former Kansas governors advocated Tuesday that voters retain all Kansas Supreme Court justices on the ballot this year, pushing back on what they called an unprecedented campaign against the court.

The former governors contended that the court’s impartiality would be threatened if the five justices up for retention are voted out. That would allow Gov. Sam Brownback to appoint the majority of the seven-member court.

Although they have previously supported efforts to oust Brownback’s allies from the Legislature, they stopped short of criticizing Brownback on Tuesday and said they opposed allowing any governor to appoint the majority of the court.

“It’s not a partisan thing. It’s not an argument among governors. It’s a question of fairness for the people of Kansas,” said former Gov. Mike Hayden, a Republican.

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It’s not a partisan thing. It’s not an argument among governors. It’s a question of fairness for the people of Kansas.

Former Gov. Mike Hayden

The invitation-only event was part of a two-day media tour by the governors on behalf of Kansans for Fair Courts, which is supportive of the justices. Former Gov. Bill Graves, a Republican, said their advocacy would continue through November.

“This is not just a one- or two-day deal,” said Graves, who appointed two justices on the ballot, Chief Justice Lawton Nuss and Justice Marla Luckert. “We intend to be engaged between now and the November general election encouraging people to vote to retain these five justices.”

Former Govs. Kathleen Sebelius and Bill Graves talk about what the impact would be if the current governor had to appoint five new justices. (Sept. 6, 2016)

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Democrats and former Govs. Kathleen Sebelius and John Carlin joined Graves and Hayden. Democrat Mark Parkinson, the state’s other living previous governor, supports the campaign but could not attend because of a scheduling conflict, Hayden said.

Sebelius appointed Justices Carol Beier and Dan Biles to the court. The fifth justice up for retention is Caleb Stegall, who was appointed by Brownback in 2014.

The justices appointed by Graves and Sebelius face an anti-retention campaign from the Kansas Republican Party and other groups.

Sebelius saw the anti-retention efforts as linked to the Legislature’s ongoing battle with the court on a variety of issues. She called judicial independence and impartiality “one of the building blocks” of the state’s democracy and said it is “under assault in a way that I don’t think any of us have ever seen.”

Carr brothers case

Among the groups seeking to oust the four justices is Kansans for Justice, formed by the family and friends of the Carr brothers’ victims.

The U.S. Supreme Court reversed the Kansas Supreme Court’s decision to overturn death sentences for the Carrs earlier this year.

Amy Scott James, whose boyfriend Brad Heyka was murdered by the Carrs, said the current justices are not fair and impartial. “They are slanted. They are activist, and they have shown that hand,” she said.

The former governors emphasized that the Carrs are still in prison and said the case does not warrant the ouster of the justices.

“Our hearts certainly go out to the victims and their families,” said Hayden, governor from 1987 to 1991. “What we’re saying is you can’t judge the court on a single case, because they’ve ruled on 1,100 since the chief justice came in. … And when you look at that whole volume of work, they’ve been upheld 99.5 percent of the time, and that’s a stellar record worthy of retention.”

Graves then chimed in: “And they’ve done some fine work on school finance.”

The court will hear oral arguments on Sept. 21 on whether Kansas schools are adequately funded. The appointment of new justices – if the anti-retention efforts succeed – could have a major impact on the case, which is likely to extend into next year.

“I think Lawton has performed well,” said Graves, who appointed Nuss in 2002. “He’s obviously taken a lot of fire on positions the court has taken, especially on the school finance issue. It’s an appointment that I was proud to make, and it’s one that I still stand by today.”

Future retention

Ousting the justices would discourage qualified candidates in the future, Sebelius said, and set up the possibility of an additional retention fight in 2018. Any new appointee must stand for retention during the first general election after his or her appointment.

Retention elections take place every six years after that.

Judicial retention elections fall outside the state’s campaign finance act, so groups do not have to disclose their donors.

Hayden called this a flawed system, but Graves said it protects impartiality because it shields the justices from knowing who donated to support or oppose their retention.

Tuesday’s forum took place at the offices of the Kansas Association for Justice, a group that represents trial lawyers. Members of the leadership team for the Kansas National Education Association, the state’s largest teachers union, were present.

Kevin Riemann, the union’s executive director, would not say whether the KNEA had donated to Kansans for Fair Courts, but he did say the union would back pro-retention efforts.

“It’s fair to say we’re going to ask our members to support the retention efforts, because we, like the governors, believe that the court has done a great job and we’re very concerned with the school funding piece with what’s going to happen if the court is loaded with Brownback appointees,” Riemann said.